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Neutral Citation Number Misc. App. 1/21 C1 General and Civil Division Case No: cc 1/2021 IN THE HIGH COURT OF SIERRA LEONE HOLDEN AT FREETOWN GENERAL AND CIVIL DIVISION Law Court Building Siaka Stevens Street Freetown Date: 19 April 2021 Before: THE HONOURABLE MR JUSTICE FISHER J ………………………………………………… Between: Alfred Peter Conteh Plaintiff/Applicant (Suing by his Attorney Rashid Santigie Sesay) -and- Dr Ernest Bai Koroma

Alhaji Osman Foday Yansaneh All Peoples Congress

Political Parties Registration Commission Defendants ………………………………………………… JM Jengo of Counsel for the Plaintiff/Applicant L Dumbuya, A Showers, A Koroma (Ms), II Mansaray of counsel for 1st Defendant AS Sesay, JB Sesay of counsel for for 2nd Defendant A Macauley, W Serry-Kamal of counsel for 3rd Defendant

Hearing date: 1 March 2021 …………………………………………………… APPROVED RULING I direct that copies of this version as handed down may be treated as authentic. ……………………………………………………

THE HONOURABLE MR JUSTICE FISHER J

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The Honourable Mr Justice Fisher J:

1. In pending proceedings before this court, counsel for 2nd and 3rd defendants

have filed two notices of motions seeking a number of orders as prayed for on

the motions. With respect to the 3rd defendant the following orders were

prayed for.

1. That this court strikes out the notice of motion on grounds of

irregularity, in that the originating process did not comply with Order

5(3) of the High Court Rules 2007 and that secondly, the originating

notice of motion does not comply with Order 8 (4) of the High Court

Rules 2007.

2. Alternatively, an order for variation of, or discharge of the interim

injunction on the grounds that the plaintiff did not make a full and

frank disclosure in obtaining an ex parte injunction.

2. The application is supported by the affidavit of the 2nd defendant Alhaji

Osman Foday Yansaneh.

3. With respect to the 2nd defendant, the notice of motion seeks the following

orders;

1. That this court grants a stay of proceedings of the substantive action,

pending the hearing and determination of this application.

2. That this court set aside the interim injunction on the grounds that the

plaintiff lacks the capacity to institute such an action.

3. That the court dismisses the substantive action instituted by the

plaintiff on the grounds of a lack of capacity to institute such an action.

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4. The application is again supported by an affidavit of Alhaji Osman Foday

Yansaneh with various exhibits attached, to which I have given due

consideration. Should the application on standing succeed, the matter would

effectively be brought to an end and the substantive matter will not be heard.

I consider it expedient to deal firstly with the application with regard standing,

and then should that application fail, I shall then proceed to consider the

application with respect to the irregularities raised by counsel for the 3rd

defendant.

Locus standi

5. The doctrine of locus standi, or standing, determines the competence of a

plaintiff to assert the matter of their complaint before the court. Since an

individual lacking locus standi is an incompetent plaintiff, it follows that, in

public law, government can exceed or abuse its powers with impunity

provided no such "qualified" litigant seeks the intervention of the court. The

position in private law claims is not entirely clear. The concept of locus standi

is more synonymous to public law claims, particularly judicial review.

applications.

6. The question of whether a plaintiff has locus standi in public law is well settled.

However, where private law rights are at stake, the question for the court to

consider is whether the concept of locus standi is relevant, and if so to what

extent does it affect a plaintiff seeking to enforce private law rights, albeit in

the public interest.

7. The decisions of the courts in R v Secretary of State for the Home Department

ex p Fire Brigades Union and Ors [1995] 2 WLR 1 and R v Coventry City Council

ex p Phoenix Aviation [1995] 3 All ER 37, amply demonstrate that neither

administrative law nor the courts can refuse to apply a law simply because the

rule at issue is perceived to be inconvenient or undesirable. The courts by their

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constitutional roles, are mandated to uphold the enacted law. The doctrine of

standing exposes a fundamental difficulty that standing permits judges to

disapply enacted law in apparent defiance of Parliament. It also appears to

violate an important mandate of the rule of law embracing the idea of

universality of law that all are equally subject to legal rules.

8. In considering the question of standing, particularly on the facts of this case,

this court in determining whether the plaintiff has locus standi, must consider

the doctrine of actio popularis. This court therefore has the power to either

stretch the standing rules or even to depart from the standing requirement

altogether. This approach is not confined to judicial review cases but also to

private law claims. However, the concept of locus standi is more rooted in

judicial review claims against administrative actions.

9. Where individuals are concerned, it will normally be fairly easy for them to

demonstrate sufficient interest, so long as they are in some way personally

interested in the decision they wish to challenge. For example, in R v

Independent Broadcasting Authority, ex parte Whitehouse (1984) Times 14 April,

a television licence holder was found to have sufficient standing to challenge a

decision to broadcast a controversial film. It was indicated that every television

licence holder would have locus standi in litigation relating to the broadcast of

programmes likely to give offence. Thus, the fact that the applicant was a

licence-holder, rather than simply a viewer, was enough to give her sufficient

standing.

10. Similarly, in R v IRC ex parte National Federation for the self-employed 1982 AC

617, Lord Diplock considered access to justice a fundamental constitutional

importance and remarked:

“It would, in my view, be a grave lacuna in our system of public law if a pressure

group, like the federation, or even a single public-spirited taxpayer, were

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prevented by outdated technical rules of locus standi from bringing the matter

to the attention of the court to vindicate the rule of law and get the unlawful

conduct stopped”.

11. At common law, the test for standing is whether the plaintiff has a "special

interest” in the subject matter of the action. The common law focussed on the

issue of locus standi in administrative law and in any event it has long been a

feature of the common law as way back in 1858, in the case of Ware v Regent’s

Canal Co. Upon a review of a number of authorities, the question of standing

has been part of public law, in particular applications for judicial review.

Notwithstanding, the concept of standing is not limited to the assertion of

public law rights. The assertion of private law rights, may also give rise to

questions of standing.

12. In the instant case, the defendant has argued that the plaintiff lacks locus

standi to institute an action against the 2nd and 3rd defendants and by all

accounts he is just a busy body. It is necessary to look at the reasons given for

such a bold assertion. In summary, AS Sesay of counsel made the following

submissions which are summarised below.

1. The plaintiff has failed to show what wrong was done to him, affecting

his personal rights.

2. That the plaintiff has failed to show that his own rights have been

breached.

3. That the plaintiff is not resident within the jurisdiction and has not

made any complaint by email, letter or whatsapp message.

4. That by article 4 and 5 of the APC constitution 1995, he is obliged to

complain using the party structures.

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5. That the plaintiff has not shown any personal conflict between himself

and the defendants and he cannot come as a busy body or meddler.

6. That the plaintiff has failed to show, how the election of a new

executive to run the affairs of the party, under a new democratic

constitution would affect him. Specifically, he has failed to show which

of his interests has been affected or threatened because a party is

wishing to adopt a new constitution.

7. That the plaintiff has not shown he is a delegate or a proposed

contestant and in any event what he now seeks from the court ought to

have been sought from the Political Parties Registration Commission,

hereinafter referred to as PPRC, as was the case in the Hinga Norman

case. He has failed to show how the holding of elections affects his

rights, when he has not come to court to represent a group. He argued

that the plaintiff is an ordinary member and the actions against the

defendant smirks of a personal vendetta. The action, he argued is

frivolous and an abuse of the process. He relied upon Order 21 of the

High Court Rules 2007, and a number of authorities to which I shall

refer subsequently.

13. This court now has to consider whether the issues raised by the defendants,

amount to an arguable case to question the standing of the plaintiff to

institute this action. As I have pointed out earlier, the institution of these

proceedings does invoke private law rights and public law rights. In

determining whether private law rights are raised by the institution of these

proceedings, consideration needs to be given to the legal status of the 3rd

defendant and the relationship with the plaintiff.

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The legal status of the 3rd defendant, APC party.

14. The question that one needs to ask is what the APC party is legally. The 3rd

defendant is not a statutory body, neither is it a company, a partnership or a

trust. The court therefore needs to examine the circumstances under which

the courts get involved in the affairs of a political party, like the APC. The

conduct of general and local elections in this country is heavily regulated by

law. In the event that an election is not conducted properly, the law will step in

to render that election result void. However, what is the situation with a

political party? Will the courts get involved or should the courts get involved,

if there are allegations that an election for party leader or other executive

members will not or has not been conducted properly?

15. In answering this question, the first thing that one needs to understand is

what the APC Party is legally. The APC not only a historical political movement,

it is, by all legal indications, an unincorporated association, something that is

“a creature of contract” (Conservative Central Office v Burrell [1982] 1 WLR 522

CA) and that is separate from a company, a partnership, or a trust. For

instance, if the APC Party was a trust then, given that its political purpose is

overtly non-charitable, it would offend against the law on perpetuities

because of the length of time that the APC Party has existed.

16. Unincorporated associations are not legal entitles that are distinct from the

members that compromise it, and for them to be recognised as such requires

the intervening power of a statute. The APC Party is governed by a National

Delegates Conference (NDC), the National advisory committee, the national

executive committee, and other committees, as provided for by article 6.2 of

the 1995 Constitution. Article 6.9.1 provides that the national delegates

conference NDC shall be the supreme authority of the party. The NDC as the

final authority of the party, shall to the exclusion of all other organs of the

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party, have the power to decide the nationwide policies of the party and

amend this constitution. If an unincorporated association like the APC Party is

in breach of its own rules, the remedy that an unhappy member may seek

would be in respect of breach of contract, i.e. a private action.

17. There has been a long line of authorities in this country which has shown that

the courts have been willing to get involved in the internal affairs of political

parties who are unincorporated associations. In other commonwealth

jurisdictions like the UK, in the cases of Lewis v Heffer [1978] 1 WLR 1061, and

Green v The Labour Party (1991) WL 1178, the courts are prepared to become

involved in the affairs of unincorporated associations if a disciplinary tribunal

or a political party acts ultra vires or is in a breach of the principles of natural

justice. Any potential challenge therefore, to the actions of an executive of a

political party would need to be concerned with a breach of the APC Party’s

rules if it is to stand any chance of success. The breach (or indeed beaches)

would to be so serious that the courts would be prepared to grant a

declaration and injunction.

18. Prior to such a challenge being successful or otherwise, the issue of standing,

when raised will have to be considered by the court. In R v London Borough of

Tower Hamlets ex p Tower Hamlets Combined Traders Association [1994] COD

325, Sedley J had this to say:

“(1) The status of the applicant. In principle it did not matter that the application was an unincorporated association lacking legal personality since out of its constituent associations could be spelt the names of individuals who constituted the association.”

19. In similar vein, the names of members of the APC party can be ascertained by

a list of its members. R. v. Liverpool City Council, ex p. Liverpool Taxi Fleet

Operators' Association [1972] 2 QB 299, CA , Lord Denning MR, with whom

Roskill LJ and Sir Gordon Willmer agreed, said, at 308–9:

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“The taxi cab owners' association come to this court for relief and I think we

should give it to them. The writs of prohibition and certiorari lie on behalf of any

person who is a ‘person aggrieved’, and that includes any person whose interests

may be prejudicially affected by what is taking place. It does not include a mere

busybody who is interfering in things which do not concern him; but it includes

any person who has a genuine grievance because something has been done or

may be done which affects him: see Attorney General of the Gambia v. N'Jie and

Maurice v. London County Council. The taxi cab owners' association here have

certainly a locus standi to apply for relief”.

20. There is therefore a critical distinction between public law and private law

litigation. In private law the individual has to be able to show that they have a

legal right which has been infringed, therefore it is fundamental that they have

legal capacity to sue. I also have to take into account the wider public policy

issues which have over time led to a more flexible approach to the issue of

standing, Groups of residents or interested people, may choose to group

together to make representations, or attend inquiries, on a matter of interest

and importance to them.

21. This is particularly the case in matters concerning planning or the local

environment, where the nature of the impact may often fall most directly on a

group of people living in a particular area. It would be unfortunate if the law

prevented them from challenging the decision which they had participated in.

22. It is clear from the relevant authorities that the matter before this court is a

private law claim, albeit with powerful public law issues emanating from the

claim. The essence of a private law claim is a breach of contractual terms

between the parties such that would entitle the other party to bring a claim

for an injunction or other relief. As I have pointed out above, the APC party is

governed by its rules, ie the 1995 constitution and the national delegates

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conference which has the powers to decide nationwide policies and amend

the constitution. Where there an allegation that a political party which is an

unincorporated association is acting ultra vires its constitution, I cannot

conceive of a situation where a member of that unincorporated association

would not have sufficient interest in bringing a claim seeking relief against an

outright illegality.

The plaintiffs’ claim.

23. The key elements of the plaintiff’s claim are set out in the originating notice of

motion and are set out as follows:

1. That the current national secretary general, Assistant National Secretary

General, National Organising secretary, Assistant National organising

secretary, National Publicity Secretary, Assistant National Publicity

Secretary, and the National Treasurer of the 3rd defendant APC party are

illegitimate, on the basis that they were not duly elected, as required by

Article 6 (14) (1)(i) of the 1995 Constitution.

2. That the four regional chairmen of the 3rd defendant APC party are

illegitimate, on the basis that they were not duly elected, as required by

Article 6(13)(3)(i).

3. That the 16 districts chairmen of the 3rd defendant APC party are

illegitimate, on the basis that they were not duly elected, as required by

Article 6(13)(4)(i) of the 1995 Constitution.

4. That the 132 constituency chairmen of the 3rd defendant APC party are

illegitimate, on the basis that they were not duly elected pursuant to

Article 6 (13)(5) of the 1995 Constitution.

5. That the National Advisory Committee be declared illegitimate, if the

declaration of illegitimacy is established.

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24. In support of these claims, the plaintiff swore to an affidavit in which he

deposed at paragraph 13 that “instead of electing the said delegates, they were

merely selected in contravention of the party constitution”.

25. That no delegates were elected from the Womens’ congress and the national

youth league, in contravention of the 1995 constitution. He further averred

that the entire leadership is illegitimate as they were all “selected” and not

elected. However, this court has taken account of the fact that the office of the

national party chairman and leader can be filled by selection. However, the

court further notes that any selection/election of a national chairman and

leader must be for a period of three years.

26. In simple terms the matters raised by the plaintiff, if true, would amount to

illegality on the part of the 3rd defendant APC party and all office holders

would be acting ultra vires of the 1995 Constitution. Where that is shown to

be the case, a member of the party as the plaintiff is cannot be said to have

locus standi to bring a claim, when the very essence of what he signed up to is

not being fundamentally adhered to. If he lacks locus standi to bring a claim

against the 3rd defendant, then the question must be asked who has the

necessary standing to bring a claim?

27. It is significant to note that in Article 4 of the 1995 APC Constitution, in

particular Articles 4 (i) and (iii), membership is only open to those who accept

the aims, objectives, policies, programmes and discipline of the party. It is even

more significant to note that in Article 5 (i) and (ii), of the said constitution,

every member shall pay such fees and levies as may be prescribed by the

national executive and having paid such fees, every member shall abide by the

provisions of the constitution. It seems to me that should it be a requirement

that every member shall abide by the provisions of the 1995 APC Constitution,

I see no lawful basis for executive members who are themselves members to

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elevate themselves to a position where they consider the requirement to abide

by the constitution does not apply to them equally as to other members.

28. I have also had regard to Article 10 of the 1995 Constitution which provides

that all officers shall hold office for a period of three years unless re-elected

by the party convention. Where it is alleged that an officer was not elected

into office and even where elected into office their mandate has expired by

virtue of their not having being re-elected in accordance with the said

Constitution, a party member undoubtedly has a right and has sufficient

interest and it is indeed his business to seek redress to enforce the provisions

of the constitution, upon which all members of the party are bound.

29. The use of the words “every member” means just that. Every member be you

an executive or ordinary member must abide by the constitution and where

the constitution requires election for a period of time, nothing less will do.

Neither will selection suffice. Consequently, I hold that where a member or a

defined group of members are acting outside of the provisions of the

constitution that they are required to abide by, they are acting ultra vires the

constitution and a member of the party would have sufficient interest in the

matter to bring a claim seeking appropriate relief from the courts.

Lack of a complaint by the plaintiff.

30. The 2nd defendant has argued that the plaintiff did not complain about any

grievances that he had. The question this court would ask itself is to whom

must the plaintiff complain to when the essence of his complaint is that those

to whom he may wish to complain about the alleged illegality are themselves

the products of the very illegality he wishes to complain about? It will certainly

defeat the purpose to complain to persons who lack the locus standi to

receive and adjudicate on the complaint.

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31. I have carefully considered the 1995 Constitution and I note it makes no

provisions as to how aggrieved members can exercise redress via a complaints

mechanism established under the constitution. The complaint mechanism is

provided for by way of an appeal under Article 8 of the constitution in relation

to appeals against a decision of any organ of the party, and only against a

disciplinary sanction imposed. A member aggrieved only has the option to

refer the complaint to the PPRC or the courts.

Complaints to PPRC

32. This court has considered whether there is a viable option of an appeal to the

PPRC, for which the plaintiff ought to have availed himself, instead of coming

to this court for redress. The PPRC is the 4th defendant in this case and is

established by section 2 (i) of the Political Parties Act No 3 of 2002. Its

functions are set out at section 6 of the Act. The key function of the PPRC is

the “registration and supervision of the conduct of political parties in accordance

with the constitution and the Act”. This court has considered whether there was

a complaint to the PPRC.

33. There is nothing on the face of the evidence before the court, that

demonstrates that the plaintiff did make a complaint to the PPRC. However,

matters of a similar nature were made by way of a complaint to the PPRC by

other members. This letter of complaint was exhibited as Exhibit RSS9, dated

6th January 2020. The letter made reference to section 6 and 24 of the Act. The

response from the PPRC is exhibited as Exhibit RSS10.

34. The 4th defendant PPRC in a considered ruling having heard from the parties

made the following findings:

1. That an application brought under section 6(2)(d) of the 2002 Act, can

only be brought by the leadership cadre of the party or by the party

itself.

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2. That none of the applicants were in cadre of the hierarchical structure

and not in the leadership cadre of the APC party.

3. That the applicants were bereft of legal capacity to bring the

application to the PPRC.

4. Further comments about the conduct of political party leaders were

made by the PPRC including an advisory notice that there was an

urgent need for an amendment to the Political Parties Act 2002, to

reflect the legislative intent of sections 34 and 35 of the 1991

Constitution and to make the commission more functional and

effective.

5. That the generality of section 6(1) read with the omnibus nature of

section 6 (2)(e) are not applicable to them by law and as such were not

intended to cater for ordinary political party membership, not captured

in section 6 (2).

6. That the only fora for redress of aggrieved members is in the courts.

35. With such a ruling by the 4th defendant, it is inconceivable that the plaintiff

who is aggrieved and with no legal mechanism of legal redress within his party

and with no legal redress within the 4th Defendant PPRC, would have any other

legal remedy apart from the court. This court would not turn away a plaintiff in

the position of this plaintiff, on the grounds that he lacks sufficient interest in

the subject matter and consequently lacks standing to institute an action.

36. As Lord Denning remarked in the case of Southwark LBC v Williams [1971] Ch

734, where defendants in dire need of housing accommodation entered

empty houses owned by the local authority, it was held that the defence of

necessity did not apply. Lord Denning MR justified the rule on the ground

that:

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“… if hunger were once allowed to be an excuse for stealing, it would open a

door through which all kinds of lawlessness and disorder would pass… . If

homelessness were once admitted as a defence to trespass, no one’s house could

be safe. Necessity would open a door which no man could shut. It would not

only be those in extreme need who would enter. There would be others who

would imagine that they were in need, or would invent a need, so as to gain

entry.”

37. As Lord Edmund Davies LJ held in the same case:

“[T]he law regards with deepest suspicion any remedies of self-help, and permits

those remedies to be resorted to only in very special circumstances. The reason

for such circumspection is clear – necessity can very easily become simply a

mask for anarchy.”

38. I therefore conclude in like terms that “shutting the door in the face of the

plaintiff seeking justice by reliance on an outdated concept of locus standi,

would open the gates to political lawlessness and illegality, thereby allowing

the concept to be undeservedly used as a mask for political anarchy.

39. Counsel has relied upon several authorities including the Hinga Norman case,

which I do not find helpful to his case. I shall deal with the Hinga Norman case

as it is a decision of the Sierra Leone Supreme Court. The others he relied

upon are persuasive authorities and I am not so persuaded by them. With

respect to the Hinga Norman case, I have had regard to the provisions of

section 122(2) of the 1991 Constitution which requires all other courts to

follow decisions of the Supreme Court on questions of law.

40. Renner-Thomas CJ at page 23 of the judgement concluded that an enquiry

into standing should thus focus on the party who brings the matter before the

court and not on the issues to be adjudicated. He went further to hold that

the present position of the law in Sierra Leone is that set out in Halsbury’s laws

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of England 4th edition Vol 1 (1) at paragraph 164 under the rubric “locus standi

for declaratory relief”, which provides as follows:

“In an action the plaintiff claiming a declaration must have some private, legal

right, or a legal interest of which the law will take cognisance and the interest

must not for example be merely a matter of professional ethics. Except where

statute otherwise provides, a private person cannot bring an ordinary action to

assert a public right whether his claim is limited to declaratory relief or not”.

41. The court had regard to the case of Yambasu and Ors v Ernest Bai Koroma &

Ors (S.C.3/2002, a judgement delivered on 22nd day of June 2004, unreported

in which Wright J.S.C. on the question of locus standi and the requirement of

an interest likely to be affected, had this to say:

“I disagree with learned counsel for the defendants that the plaintiffs do not

have a locus standi in this matter. In my view, the plaintiffs in the action do have

an interest that is most likely to be affected by this action”

42. There are thus, at least two decisions of the Supreme Court on the issue of

locus standi in the enforcement of private legal rights. This shows that such

matters are best decided on their own facts. Having reviewed all the

authorities outlined above, it is unarguable to suggest that the plaintiff lacks a

sufficient interest in this case and cannot therefore enforce a private right

against his own party, whose executive members are acting ultra vires of their

constitution which governs their conduct, particularly so as the 4th defendant

PPRC has directed persons in his capacity to approach the court for redress.

43. Whilst the key issue for the plaintiff is the enforcement of private law rights,

these rights also have a significant public interest. Section 35 (2) of the 1991

Constitution, provides that:

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“the internal organisations of a political party shall conform to democratic

principles and its aims, objectives, purposes and programmes shall not

contravene, or be inconsistent with, any provisions of this Constitution”

44. Thus it cannot be argued that a member of a political party whose party

officials are allegedly acting undemocratically does not have standing to

enforce the private law rights which they have by virtue of being members of

the party, even though that enforcement sought is also in the public interest.

In the circumstances, I hold that the plaintiff does have a sufficient interest in

this matter and he does have standing to institute this action. The objection

brought by the 2nd defendant is therefore overruled. The several prayers

prayed for on the face of the motion dated the 5th day of March 2021, are

refused. The issue of costs would be dealt with in due course.

45. I shall now deal with the objections brought by the 3rd defendant in their

motion. By way of the said notice of motion, dated the 4th day of March 2021,

the 3rd defendant seeks a number of orders as prayed for on the notice of

motion. I must at this stage point out that Mr Macauley who appeared for the

3rd defendant, abandoned prayer 1(b) on the motion. With respect to the 2nd

prayer, he prayed for a variation of the injunction on the grounds that the

plaintiff did not make a full and frank disclosures of all relevant facts when he

sought and obtained an ex parte interim injunction. In support of the

application is the affidavit sworn to by the 2nd defendant, dated 4th day of

March 2021.

46. In summary, Mr Macauley alleged that the originating process used does not

comply with Order 5 rule 3 of the High Court Rules 2007 and is therefore

irregular. He suggested the proceedings should have been commenced by

originating summons. He sought a strike out of the proceedings amongst a

whole lot of other irregularities. In simple terms, Order 31 rule 4, allows the

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court to receive an affidavit sworn for the purpose of being used in a cause of

matter, notwithstanding any defect in its form and notwithstanding the

irregularities raised by Mr Macauley, I am prepared to receive it accordingly.

47. With respect to Order 5 rule 3, it is necessary for this court to examine the

context of the arguments raised by counsel.

3. (1) Proceedings by which an application is to be made to the Court or a judge

under any enactment shall be begun by originating summons except where, by

these Rules or by or under an enactment the application is expressly required or

authorized to be made by some other means.

48. Mr Macauley has not provided adequate reasons for his assertion that the

Originating summons process ought to have been used. In any event, as I

read the application, the plaintiff is invoking the original jurisdiction of the

High Court and the use of the Originating notice of motion does not nullify

the proceedings. In any event assuming the use of the Originating notice of

motion is wrong, the defendants have taken fresh steps in acceptance of its

use in any event.

49. Further, Order 2 rule 1 provides clearly that an irregularity shall not nullify the

proceedings. Sub rule 3 also prevents the court from wholly setting aside any

proceedings on the grounds that it was begun by the wrong process other

than the one employed. In any event, pursuant to order 2 rule 2, the

application shall not be allowed unless it is made within a reasonable time and

before the defendant took any fresh steps after becoming aware of the

irregularity. I will therefore not allow the application in any event, for the

reasons stated above. The first prayer is therefore refused.

50. For the same reasons I have borne in mind that the application was an ex

parte application, made in circumstances of urgency and in any event,

notwithstanding the defect, the defendants have entered appearance to the

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said motion. The provisions of order 8 rule 4 are merely administrative, and

where it is not so sealed, the provisions of Order 2 rule 2 apply. The

application is for the 1st prayer on the grounds relied upon in Order 8 rule 4 is

also refused.

The second prayer

51. Mr Macauley has sought a variation of the injunction order on the grounds

that full and frank disclosure has not been given by the plaintiff. He relied

upon the affidavit in support in its entirety. I have considered the affidavit in

support in a bid to discover the allegations of a lack of full and frank

disclosures relied upon. In that respect, I have had regard to paragraphs 10, 12

and 13. The factual contents do not in my view amount to material non-

disclosure for the purposes of obtaining an ex parte interim injunction. I do

not propose to go into the reasons for my conclusions, but having regard to

the notices at exhibits D1-6, in particular the timetable disclosed for the

convention, it is not beyond the bounds of possibility that the said convention

could have been held at any time between 15th January 2021 and 15th July

2021. The plaintiff cannot be faulted for acting as he did to preserve the status

quo.

52. Before me, Mr Macauley appeared to have abandoned the non-disclosure

argument as a ground for seeking variation of the injunction order and quite

sensibly too. He canvassed this court to take into account the fact that the 3rd

defendant wants to adopt a new constitution and the election cycle had

already kicked off. The flagbearer should be elected at least two years prior to

the election and that the current executive will only go to a convention to

adopt the constitution and do nothing else and that NAC has the powers to

carry out the functions of the executive. He informed the court that the review

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of the constitution had been distributed and copies can be given to the

plaintiff.

53. JM Jengo for his part informed the court that the plaintiff has no issues with

variation, as long as the issues they have raised are dealt with. He relied upon

their affidavit in opposition, dated 9th March 2021 and exhibits attached.

Variation of the injunction

54. I granted an injunction in this case as I was satisfied then that there were

serious triable issues that needed to be tried and it was necessary to grant an

injunction, pending the hearing and determination of the substantive action. I

still remain of the view that there are still serious issues that need to be

considered and in that respect the injunction ought to continue, pending the

hearing and determination of the substantive action.

55. Notwithstanding those conclusions on the continuation of the injunction, I

have had regard to the issue of the variation of the injunction sought by

counsel for the 3rd defendants, for the reasons given. In that regard I have

considered the importance of political parties in a democracy. These include

and are not limited to the following:

1. They make Governments accountable for its actions;

2. Prevents the rise of anti-party politicians.

3. Habituate the public to democratic norms and practices.

4. Articulate and aggregate interests.

5. Recruit, nominate and socialize political leadership.

6. Form and sustain governments.

56. Parties make the government accountable in several ways such as through

strengthening the opposition, helping voters identify past performances,

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providing checks and balances on the executive and diminishing the power of

dominating personalities. They also help the opposition effectively challenge

the incumbent government. Without political parties, the ability of the

democratic opposition to maintain a united front is very difficult. Opposition

movements without parties tend to be fragile, fragmented and incoherent,

with limited capacity to mobilize, organize and coordinate collective action.

57. It is for these reasons and many more that the constitution of Sierra Leone Act

No 6 of 1991, in Section 34 (4) recognises the importance of political parties

by the creation of the Political Parties Registration Commission and the

enactment of the Political Parties Act 2002, in the democracy of the country.

Further in section 35(2) of the Constitution, a specific requirement is enacted

to ensure that the internal organisation of a political party shall conform to

democratic principles, and its aims, objectives, purposes and programmes

shall not contravene, or be inconsistent with, any provisions of this

Constitution.

58. Where a political party such as the 3rd defendant has indicated a willingness to

abide by democratic principles in the review and adoption of a new

constitution which it is suggested is more democratic, this court is duty bound

to ensure that assistance is given to the 3rd defendant to ensure it maintains

the spirit and tenets of section 35(2) of the 1991 Constitution, by doing all it

can within the law, to facilitate the process of compliance with democratic

tenets.

59. In that regard, I am satisfied that this court should exercise its discretion to

vary the injunction temporarily, in order to assist the 3rd defendant to adopt its

new democratic constitution, pending the hearing and determination of the

substantive action on the legitimacy or otherwise of the organs challenged

within the party.

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60. However, in varying the injunction, I have to comply with existing laws as

expressed by the wishes of parliament and pay due deference to the current

1995 constitution of the 3rd defendant. I also have to bear in mind that the

challenge brought by the plaintiff has not been fully determined and that

there are serious issues that remain to be determined by this court.

61. I have fully considered the evidence submitted by all parties in this case and in

view of the fact that this court is yet to make a determination on the

substantive issues, I consider it expedient at this not to comment upon the

specifics of the evidence at this stage. However, I need to consider how best

to assist the 3rd defendant to adopt its constitution whilst maintaining the rule

of law, in the light of the alleged illegalities raised by the plaintiff, in relation to

the occupancy of the respective offices within the party, by executive

members.

62. I have borne in mind the question of delegates to attend the National

Delegates Conference and their eligibility. The 1995 constitution sets out the

eligibility criteria of the delegates but a number of these delegates are subject

to the allegations of illegality of the occupation of their offices. Their eligibility

to attend a national delegates conference as delegates rests squarely on the

legitimacy of the occupation of their respective offices. Delegates who go to

the National delegates conference as delegates must be entitled to do so

legitimately and must have no question marks hanging over their eligibility. A

prospective delegate cannot expect to take part in a legitimate process to

adopt a new constitution, of a party when the very basis of their own

legitimacy to act as a delegate is being questioned.

63. I shall set a time table to enable the amended constitution to be adopted at

an emergency national delegates conference with modifications.

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64. In addition, I am satisfied that the emergency national delegates convention

can still be held in compliance with the 1995 Constitution. The National

delegates conference is provided for in Article 6.91 of the 1995 Constitution.

Paragraph 6.9.2 (i) provides that a national delegates convention can be held

at least once in three years. Article 6.9.2 Sub article (ii) provides that an

emergency national delegates conference may be convened as and when

necessary by NAC. Sub para iii provides that the quorum for such a conference

shall be one third of the accredited delegates at the conference.

65. In those circumstances, I am satisfied that the emergency national delegates

convention can be held with the required quorum.

66. Consequent upon the above, I shall make the following orders:

1. The terms of the injunction granted by this court on 26th day of

February 2021 continues in force, subject to the following variation set

out in sub paragraphs 2-11.

2. The 3rd defendant shall hold an emergency national delegates

conference, for the sole purpose of adopting the amended draft

constitution and to deal with any unresolved membership issues.

3. The following office holders are restrained from taking part as

delegates in the emergency national delegates convention:

I. All members of the National Advisory Committee.

II. The National Secretary General.

III. The Assistant National Secretary General.

IV. The National Organising Secretary.

V. The Assistant National Organising Secretary.

VI. The National Publicity Secretary.

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VII. The Assistant National Publicity Secretary.

VIII. The National Treasurer.

IX. The five regional chairmen.

X. The 16 districts chairmen.

XI. The 132 constituency chairmen.

4. All other members of the National delegates conference (not

restrained in paragraph (66)((3) above) are eligible to take part in

the emergency national delegates conference., as delegates.

5. The 3rd defendant shall ensure that the following elections are

conducted no later than 25th June 2021 from the date of this order:

I. Elections of twenty delegates for the women’s congress;

II. Elections of twenty delegates for the youth league;

III. Elections of five delegates by each constituency.

6. A full delegates list shall be prepared by the 3rd defendant and

submitted to the 4th defendant PPRC, no later than 4pm on Friday the

9th day of July 2021.

7. The 3rd defendant shall publish a copy of the original draft constitution

as submitted by the Constitutional Review Committee in two daily

national newspapers with wide circulation, within 7 days of this order;

and in addition;

I. Serve a copy of the said draft constitution on this court;

II. Serve a copy of the said draft constitution on the solicitors for

the plaintiff;

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III. Make a copy available at the registered headquarters of the

party in Freetown and every regional district and constituency

office around the country and in the diaspora.

IV. Serve a copy of the said draft constitution on the 4th defendant

PPRC in accordance with the provisions of section 24 of the

Political Parties Act 2002.

8. The 4th defendant PPRC shall determine the time for the coming into

effect of the amended constitution, in accordance with the provisions

of section 24(2) of the Political Parties Act no 3 of 2002.

9. The 3rd defendant shall hold the emergency national delegates

conference within 56 days, from the date the 4th defendant determines

the amended constitution shall have come into effect.

10. The 4th defendant PPRC shall supervise the conduct of the emergency

national delegates conference.

11. There shall be no orders as to costs, with respect to the application

made by the 3rd defendant.

12. The 2nd defendant shall pay the costs to the plaintiff with respect to the

unsuccessful application, summarily assessed at Le5,000,000.00,

forthwith.

13. The matter shall be adjourned to Monday the 20th day of September

2021 for the hearing and determination of the substantive action.

14. All matters each party intends to rely upon, if not already served in

accordance with the directions given on 13th September 2021, shall be

filed in accordance with those directions, in particular directions 5 (1-

4) no later than 4 pm on 13th day of September 2021.

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15. Costs of the substantive application shall be in the cause.

The Hon Mr Justice A Fisher J